( 1 ) THIS is a defendant's second appeal against the decree passed by the civil Judge, Kolar in RA No. 151 of 1961, modifying the decree passed by the Munsiff at Kolar Gold Fields in O. S. No. 304 of 1960. The respondent Plaintiff brought the suit for a declaration that he is the owner of the vacant site shown as ABXEF and equal right in the common wall marked bf in the plaint sketch and for a mandatory injunction directing the defendant to close the window newly put up in the upstairs facing the open space and the drain draining out the water from the defendant's building falling on the open space. The plaintiff and the defendant have purchased the adjoining properties from the common owners Venkatalakshmiah setty and his two brothers. The property purchased by the plaintiff is shown as AXCDEM in the plaint sketch. The property purchased by the defendant is shown as BGLKHF. The properties in question are situate in Bangarpet town in the district of Kolar. The plaintiff's case is that the wall BF is the common wall, in which the defendant is not entitled to open a window facing the open space belonging to the plaintiff, as the same amounts to infringement of the right of privacy of the plaintiff and the members of his family. His further case is that the defendant is not entitled to open drains draining out water from his building and allowing it to fall in the open space of the plaintiff. The defendant resisted the suit on various grounds. The defendant contended that the wall BF is the exclusive wall belonging to him. He further contended that he has a right to open a window as he had done in the wall bf opening towards the open space belonging to the plaintiff. He also contended that he has got a right to let drain water in the open space belonging to the plaintiff.

( 2 ) THE learned Munsiff, after considering the evidence on record, partly decreed the suit of the plaintiff. The learned Munsiff issued a permanent injunction restraining the defendant from letting out drain water from the first floor portion of his house shown as BGLF on the Plaintiff's open space shown as ABFX. The suit of the plaintiff in so far as it related to a mandatory injunction directing the defendant to close the window put up in the wall BF was dismissed.

( 3 ) THE decree passed by the learned Munsiff was not challenged by the defendant in appeal. It is only the plaintiff that went up in appeal, to the Court of the Civil Judge in so far as his suit for mandatory injunction directing the defendant to close the window in the wall was dismissed. The decree passed by the trial court against the defendant restraining him from letting out drain water in the open space of the plaintiff has, therefore, become final. The learned Civil Judge allowed the appeal of the plaintiff and made a decree in favour of the plaintiff directing the defendant to close the window put up by the defendant in the wall BF, on the ground that the said window affects the right of privacy of the plaintiff and the members of his family.

( 4 ) IT is the legalitv of the decree passed by the learned Civil Judge in appeal that is challenged by the defendant in this second appeal under s. 100 of the Code of Civil Procedure.

( 5 ) SHRI L. S. Varadaraja Iyengar, learned counsel for the appellant, contended that the decree passpd by the learned Civil Judge directing the defendant to close the window put up in the wall BF is not in accordance with law. Shri Varadaraja Tyengar rightly invited my attention to the fact that both the Courts have concurrcntlv recorded a finding in favour of the defendant thpt the wall BF in which the window has been put. is the exclusive wall belonging to him and not a common wall, as pleaded by the plaintiff. Shri Varadaraja Iyengar contended that in law the defendant is entitled to enjoy the property in any manner he likes as long as he does not interfere with the rights of the plaintiff. He further submitted that the defendant being the exclusive owner of th

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